GAMBHIR SINGH Vs. SURENDRA SINGH

JUDGEMENT

(1.) The District Judge has wrongly refused jurisdiction. His attention does not appear to have been drawn to the provisions of Section 248(3), Agra Tenancy Act. What happened in the present case was this. A suit for recovery of arrears of rent was dismissed by an Assistant Collector of the Second Class on the ground that the plaintiffs had no rights in the sir land. This was the contention raised both by the tenants and by the other defendants who were zamindars. Clearly a question of proprietary title was raised. The plaintiffs went in appeal to the Collector, and he held that the plaintiffs and the zamindar-defendants were jointly proprietors of the sir land and that, therefore, the plaintiff's were entitled to sue for recovery of rent. The suit was, therefore, remanded under Order 41, Rule 23, Civil P.C. This was an order, and an appeal has been provided from an order of the Collector under Section 248(3), Agra Tenancy Act. The provisions of the section run as follows: An appeal shall lie from the following orders of an Assistant Collector of the First Class or of a Collector, namely; orders mentioned in Secs.47 and 104 and in Order 43, Rule 1, Civil P.C., 1908.

(2.) Under Order 43, Rule 1(u) an appeal shall lie from an order under Rule 23, O, 41, remanding a case, where an appeal would lie from the decree of the appellate Court. The question, therefore, to be decided is whether in a case like the present an appeal would lie from the decree of the Collector to the District Judge. Such an appeal would lie from the appellate decree of a Collector in the present case under Section 243, Tenancy Act because a proprietary right has been in issue between the parties in the first appellate Court and is certain to be in issue in the appeal. The learned Judge's reference to Section 249 of the Act arises out of a misapprehension. He has omitted to notice that this section comes under the heading "appeals from orders." Possibly the language of Section 249 is not happy. But this section should be read in reference to the heading above Section 247. An appeal is prohibited from an order passed in appeal from another order and not from an order in appeal from a decree. The District Judge had jurisdiction to hear the appeal. His decree dated 23 April 1929, is set aside and he is directed to hear the appeals 1 and 57 of 1928 of his Court according to law.

(3.) Costs here and heretofore shall abide the result.